Scott Gaylord article on RFRA published in Missouri Law Review

The professor of law analyzed the proper standard under the Religious Freedom Restoration Act for determining whether a government action substantially burdens religious exercise.

Professor Scott Gaylord
An Elon Law scholar of constitutional law argues in the Missouri Law Review that circuit courts have a second opportunity to consider the scope of free exercise protection under Religious Freedom Restoration Act and whether courts or religious practitioners have the right to determine when government-mandated actions contravene sincerely held religious beliefs.

In “RFA Rights Revisited: Substantial Burdens, Judicial Competence, And The Religious Nonprofit Cases,” Professor Scott Gaylord explores the future of seven court cases involving religious nonprofit groups recently considered and vacated by the U.S. Supreme Court.

The nonprofits claimed the Patient Protection and Affordable Care Act burdens the free exercise of the religious organizations by mandating that insurance policies cover contraception. Gaylord writes that “courts lack the authority and competence to declare what the religious commitments of a faith are and when those commitments are violated.”

From the article’s abstract in the Missouri Law Review’s summer 2016 issue (not yet posted online):

“Under the Court’s free exercise precedents, courts can determine only whether the government puts a religious practitioner to the choice of engaging in conduct that violates her beliefs or disobeying the government’s policy and facing ‘serious’ consequences. Religious and philosophical questions regarding moral complicity are left to religious adherents, not the courts. As the Founders recognized, religious and moral questions transcend the legal, imposing a different–and higher–obligation on religious believers. For religious adherents, only God (through a religious authority determined in accordance with their sincere religious beliefs) can determine whether an action makes them complicit in sin. Consequently, as the Court explained in Hobby Lobby, ‘question[s]’ about moral complicity are ones ‘that the federal courts have no business addressing.’”

Gaylord’s legal research explores jurisprudence at the intersection of the Constitution’s Free Speech and Establishment Clauses, exploring the impact of the U.S. Supreme Court’s newly minted government speech doctrine on legislative prayer and other forms of facially religious government speech. His most recent scholarship examines the scope of First Amendment speech and religion under the Roberts Court.

Before joining Elon, Gaylord practiced with the Charlotte, N.C. firm of Robinson, Bradshaw & Hinson. During seven years with the firm, Gaylord handled complex civil and commercial litigation involving breach of contract, unfair trade practice, bankruptcy and appellate work in both state and federal courts. He served as a law clerk to Judge Edith Jones on the Fifth Circuit Court of Appeals in Houston from 1999 to 2000.